sustained defense in New York

2016In light of the trial proof, which included defendant’s admissions as to all of the salient details as to the time, place and manner of his encounter with the complainant save for whether he had sexually accosted the complainant, and the indicia of the complainant’s credibility as to the facts of the offenses, it cannot be said that there was any significant probability that, but for the prosecutor’s summation, defendant would not have been convicted (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; e.g.

1994While we agree with the defendant that the Supreme Court erred when it questioned the defendant about his pretrial silence (see, People v De George, 73 NY2d 614 ; People v Conyers, 52 NY2d 454 ; People v Gluckowski, 174 AD2d 752 ), the error was harmless given that the court sustained defense counsel’s objection to the questioning and directed the jury to disregard it, and in view of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230 ; People v Gluckowski, supra).

2014Defendant did not thereafter request further curative instructions or move for a mistrial, and thus failed to preserve for our review his present contention that the prosecutor’s conduct deprived him of a fair trial (see CPL 470.05 [2]; People v Norman, 1 AD3d 884, 884 [2003], lv denied 1 NY3d 599 [2004]).

2014Defendant did not thereafter request further curative instructions or move for a mistrial, and thus failed to preserve for our review his present contention that the prosecutor’s conduct deprived him of a fair trial (see CPL 470.05 [2]; People v Norman, 1 AD3d 884, 884 [2003], lv denied 1 NY3d 599 [2004]).

2010Moreover, the denial of defendant’s motion for a mistrial was not an improvident exercise of discretion (see People v Hickman, 60 AD3d 865, 866 [2009]; see generally People v Ortiz, 54 NY2d 288, 292 [1981]).

1991We note in this respect that immediately after the witness’s comment was made, the trial court sustained defense counsel’s objection and administered a prompt curative instruction, which, we find, was sufficient to dispel any prejudice to the defendant (see, People v Rodriguez-Alvarez, 156 AD2d 733 ; People v Santiago, 155 AD2d 628 ; People v Martin, 154 AD2d 554 ; People v Johnson, 124 AD2d 1063 ; see also, People v Ortiz, 54 NY2d 288, 294 ; People v Santiago, 52 NY2d 865 ; cf., People v Blasich, 73 NY2d 673, 682 ; People v Baptiste, 72 NY2d 356 ).

2024Defendant's contention is also unpreserved with respect to the testimony of the fourth witness inasmuch as the court sustained defense counsel's objection to that testimony and struck it from the record and, "in the absence of further objection or a request for a mistrial, [the court's remedy] 'must be deemed to have corrected the error to the defendant's satisfaction' " ( People v Acosta , 134 AD3d 1525 , 1526 [4th Dept 2015], lv denied 27 NY3d 990 [2016], quoting People v Heide , 84 NY2d 943, 944 [1994]; see People v Contreras , 154 AD3d 1320, 1321-1322 [4th Dept 2017], lv denied 30 NY3d 110

2018The court sustained defense counsel's objections to the prosecutor's questions and provided a curative instruction "that, in the absence of further objection or a request for a mistrial, must be deemed to have corrected the error[] to the defendant's satisfaction' " ( People v Terborg , 156 AD3d 1320, 1321 [4th Dept 2017], lv denied 31 NY3d 1018 [2018], quoting People v Heide , 84 NY2d 943, 944 [1994]).

2004The defendant’s challenge to certain comments made by the prosecutor during summation is also unpreserved for appellate review, since the defense counsel failed to request curative instructions or move for a mistrial when the trial court sustained the defense counsel’s objection (see CPL 470.05 [2]; People v Medina, 53 NY2d 951, 953 [1981]; People v Clemmings, 300 AD2d 672 [2002]; People v McHarris, 297 AD2d 824, 825 [2002]).

2003Most of the defendant’s challenges to the prosecutor’s summation are unpreserved for appellate review since the defense counsel either failed to make specific and timely objections, or failed to seek curative instructions or move for a mistrial where the trial court sustained the defense counsel’s objections (see CPL 470.05 [2]; People v Medina, 53 NY2d 951 [1981]; People v Clemmings, 300 AD2d 672 [2002]; People v McHarris, 297 AD2d 824, 825 [2002]).

2023Any possible resulting prejudice to the defendant was ameliorated when the court sustained defense counsel's objection to the prosecutor's question on redirect examination, which prevented the witness from responding, and provided a curative instruction to the jury, which the jury is presumed to have followed ( see People v Santiago , 52 NY2d 865, 866 ; People v Morris , 189 AD3d 1077, 1079 ; People v Dubois , 116 AD3d 878, 878 ; People v Ray , 100 AD3d 933, 933-934 ).

2010Any prejudice that might have arisen from hearsay testimony elicited by the prosecutor was alleviated when the trial court sustained the defense objections to the challenged testimony, struck the testimony, and issued prompt curative instructions to the jury (see People v Santiago, 52 NY2d 865 [1981]; People v Jackson, 59 AD3d 637 [2009]; People v Garcia, 4 AD3d 374 [2004]; People v Reid, 140 AD2d 639, 640-641 [1988]).

2004The defendant’s challenge to certain comments made by the prosecutor during summation is also unpreserved for appellate review, since the defense counsel failed to request curative instructions or move for a mistrial when the trial court sustained the defense counsel’s objection (see CPL 470.05 [2]; People v Medina, 53 NY2d 951, 953 [1981]; People v Clemmings, 300 AD2d 672 [2002]; People v McHarris, 297 AD2d 824, 825 [2002]).

2003Most of the defendant’s challenges to the prosecutor’s summation are unpreserved for appellate review since the defense counsel either failed to make specific and timely objections, or failed to seek curative instructions or move for a mistrial where the trial court sustained the defense counsel’s objections (see CPL 470.05 [2]; People v Medina, 53 NY2d 951 [1981]; People v Clemmings, 300 AD2d 672 [2002]; People v McHarris, 297 AD2d 824, 825 [2002]).

2016Nevertheless, the court sustained defense counsel's objections to certain of the remarks and repeatedly issued ameliorative instructions as to the significance of the summations of counsel, which instructions the jury is presumed to have followed ( see People v Baker , 14 NY3d 266 , 274 [2010]; People v Evanson , 71 AD3d 782 , 783 [2010]).

2016Nevertheless, the court sustained defense counsel’s objections to certain of the remarks and repeatedly issued ameliorative instructions as to the significance of the summations of counsel, which instructions the jury is presumed to have followed (see People v Baker, 14 NY3d 266, 274 [2010]; People v Evanson, 71 AD3d 782, 783 [2010]).

2016Nevertheless, the court sustained defense counsel's objections to certain of the remarks and repeatedly issued ameliorative instructions as to the significance of the summations of counsel, which instructions the jury is presumed to have followed ( see People v Baker , 14 NY3d 266 , 274 [2010]; People v Evanson , 71 AD3d 782 , 783 [2010]).

2016Nevertheless, the court sustained defense counsel’s objections to certain of the remarks and repeatedly issued ameliorative instructions as to the significance of the summations of counsel, which instructions the jury is presumed to have followed (see People v Baker, 14 NY3d 266, 274 [2010]; People v Evanson, 71 AD3d 782, 783 [2010]).

2016The court sustained defense counsel’s objection, struck the response, recalled the witness to give clarifying testimony favorable to defendant and twice provided curative instructions which the jury is presumed to have followed (see People v Davis, 58 NY2d 1102, 1104 [1983]).

1994Since the court sustained defense counsel’s objections to the prosecutor’s misstatements regarding the method by which the court had notified defense counsel of a change in the date on which defendant, who had been released on parole, was scheduled to return to court, and since the jury is presumed to have followed the court’s instruction to disregard any testimony that has been stricken from the record (People v Davis, 58 NY2d 1102 ), we reject defendant’s claim that those misstatements constitute reversible error.

2010Any prejudice that might have arisen from hearsay testimony elicited by the prosecutor was alleviated when the trial court sustained the defense objections to the challenged testimony, struck the testimony, and issued prompt curative instructions to the jury (see People v Santiago, 52 NY2d 865 [1981]; People v Jackson, 59 AD3d 637 [2009]; People v Garcia, 4 AD3d 374 [2004]; People v Reid, 140 AD2d 639, 640-641 [1988]).

2010However, in light of the fact that the court sustained defense counsel’s objections and, in the one instance where defense counsel requested a mistrial, provided the jury with a curative instruction, any prejudice to defendant that may have resulted from such testimony was alleviated (see People v Jackson, 59 AD3d 637, 638 [2009]).

2007The defendant’s challenges to the prosecutor’s summation are unpreserved for appellate review because the defense counsel either failed to make specific and timely objections, or failed to seek curative instructions or move for a mistrial when the trial court sustained the defense counsel’s objections (see CPL 470.05 [2]; People v Morris, 2 AD3d 652 [2003]).

2006The defendant’s challenges to certain remarks by the prosecutor in summation are unpreserved for appellate review as the defense counsel either failed to make specific and timely objections, or failed to seek curative instructions or move for a mistrial where the trial court sustained the defense counsel’s objection (see CPL 470.05 [2]; People v Morris, 2 AD3d 652, 653 [2003] ).

2024Defendant's contention is also unpreserved with respect to the testimony of the fourth witness inasmuch as the court sustained defense counsel's objection to that testimony and struck it from the record and, "in the absence of further objection or a request for a mistrial, [the court's remedy] 'must be deemed to have corrected the error to the defendant's satisfaction' " ( People v Acosta , 134 AD3d 1525 , 1526 [4th Dept 2015], lv denied 27 NY3d 990 [2016], quoting People v Heide , 84 NY2d 943, 944 [1994]; see People v Contreras , 154 AD3d 1320, 1321-1322 [4th Dept 2017], lv denied 30 NY3d 110

2024Defendant's contention is also unpreserved with respect to the testimony of the fourth witness inasmuch as the court sustained defense counsel's objection to that testimony and struck it from the record and, "in the absence of further objection or a request for a mistrial, [the court's remedy] 'must be deemed to have corrected the error to the defendant's satisfaction' " ( People v Acosta , 134 AD3d 1525 , 1526 [4th Dept 2015], lv denied 27 NY3d 990 [2016], quoting People v Heide , 84 NY2d 943, 944 [1994]; see People v Contreras , 154 AD3d 1320, 1321-1322 [4th Dept 2017], lv denied 30 NY3d 110

2024We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]; Howard , 167 AD3d at 1501; Acosta , 134 AD3d at 1527).

2024Defendant's contention is also unpreserved with respect to the testimony of the fourth witness inasmuch as the court sustained defense counsel's objection to that testimony and struck it from the record and, "in the absence of further objection or a request for a mistrial, [the court's remedy] 'must be deemed to have corrected the error to the defendant's satisfaction' " ( People v Acosta , 134 AD3d 1525 , 1526 [4th Dept 2015], lv denied 27 NY3d 990 [2016], quoting People v Heide , 84 NY2d 943, 944 [1994]; see People v Contreras , 154 AD3d 1320, 1321-1322 [4th Dept 2017], lv denied 30 NY3d 110

2023Moreover, the victim's answers were not altogether unresponsive to counsel's questionsand, in any event, on both occasions the court sustained defense objections, struck the testimony from the record and issued curative instructions which the jury is presumed to have followed ( see People v Hajratalli , 200 AD3d 1332, 1338 [3d Dept 2021], lv denied 38 NY3d 1033 [2022]).

2023Overall, the three incidents "were not so pervasive and flagrant" as to cause substantial prejudice to defendant, thereby depriving him of a fair trial ( People v Bonaparte , 196 AD3d at 869; see People v Malloy , 124 AD3d 1150, 1152 [3d Dept 2015], lv denied 26 NY3d 969 [2015]).

2023Overall, the three incidents "were not so pervasive and flagrant" as to cause substantial prejudice to defendant, thereby depriving him of a fair trial ( People v Bonaparte , 196 AD3d at 869; see People v Malloy , 124 AD3d 1150, 1152 [3d Dept 2015], lv denied 26 NY3d 969 [2015]).